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IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

ALEXANDER BAYONNE STROSS :

Plaintiff, :

V. : Civil Case # 4:23-cv-00183

HOMESTEAD PROPERTIES INC DBA :

TINY TIMBERS
Defendant. :

REPLY TO STOSS RESPONSE TO

MOTION DISMISS UNDER FEDERAL RULES 12(b)(6)

I. Introduction.

Defendant Homestead Properties, Inc. dba Tiny Timbers (hereinafter referred to as Tiny

Timbers), by counsel, respectfully submits this Reply to Plaintiff Alexander Bayonne

Stross’ (hereinafter referred to Stross) to the Rule 12(b)(1).

The Plaintiff Stross is an individual who claims to own a copyright on a “Work”

entitled “cv_240310_19.

Tiny Timbers is a dba for Homestead Properties, Inc. Homestead Properties was

incorporated under Indiana law on April 3, 1986, with a Business ID of 198604-109.

Homestead Properties has been continually active since 1986 and has done business as

Tiny Timbers.

Stross brought suit against Homestead Properties, Inc., dba Tiny Timbers, (Tiny

Timbers) for alleged violations of the United States Code under Title 17, Copyright law.

In addition to lacking subject-matter jurisdiction, which was addressed in the Motion to

Dismiss for lack Of Jurisdiction (Doc 15) and Memorandum (Doc 16), Tiny Timbers also
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filed a Motion for Dismiss under Rule 12(b)(6) for Stross’s complaint to be dismissed for

failure to state a claim.

Stross filed a response to Doc 15 and 16. Tiny Timbers is contemporaneously

replying to Stross’s response regarding the lack of jurisdiction. Tiny Timbers also filed a

Motion to Dismiss for failure to state a claim (Doc 17). Unfortunately, when Doc 18 was

filed the Motion for Dismissal (Doc 17) was inadvertently filed instead of the

Memorandum. The attachments for the Memorandum were correctly filed (Doc 18-1 to

18-8). Tiny Timbers now files its Reply to Stross’s Response to the Motion to Dismiss

(Doc 21).

II. Reply Arguments.

A. Failure to State a Claim.

1. Claims Made in Complaint.

The Complaint filed by Stross alleged violations of 17 U.S.C. §§106, 501 and

1202. In ¶1 of the Complaint Stross alleges he had exclusive rights of an “original

copyrighted Work of authorship. The only claimed “original copyrighted Work of

authorship” that Stross copied is found in ¶11 of the Complaint. ¶11 set forth a

photograph entitled “cv_2403310_10.” On the bottom right corner of the photograph is a

© and A3S watermark. ¶12 alleges the photograph was registered by the Copyright

Office on April 9, 2010. ¶13 alleges the photograph was protected by copyright. Hence

the © on the bottom right corner. ¶14 alleges the A3S watermark is Stross’ signature.

Stross’ claim that at all relevant times he was the owner of the copyright. Finally, Stross

alleges at ¶15 that at all relevant times he was the owner of the copyright. On the basis of

these allegations Stross alleged at §501 These issues were extensively dealt with in the

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Motion to Dismiss under Rule 12(b)(1) (Docs 15 and 16 with Exhibits). The instant

Reply addresses the failure to state a claim.

When Stross responded to the Motion to Dismiss (Doc 17) he repeated the same

cases that show prima facie presumptive evidence of a valid copyright. Whether there

was a valid copyright is not the prevailing issue in the Motion to Dismiss for failure to

state a claim. It is rather to address claims made in the Complaint that negate an

infringement and whether there was a removal of copyright management information.

2. No Infringement Under §501.

a. Complaint Shows No Infringement.

A caveat is in order here. The following argument related to §501 is made with the

assumption that the photograph Stross listed in ¶11 of the Complaint, which has a

watermark signature and a © mark is in fact, not in theory, copyrighted. The arguments in

the Motion to Dismiss and Memorandum for lack of jurisdiction (Docs 15-16) and the

contemporaneously filed Reply conclusively show the ¶11 photograph is not copyrighted.

§501(a) provides “Anyone who violates any of the exclusive rights of the

copyright owner as provided by sections 106 through 1 … is an infringer of the copyright

or right of the author, as the case may be.”

In a Federal Rule of Civil Procedure 12(b)(6) motion, the court must accept the

complaint’s well-pleaded factual allegations, with all reasonable inferences drawn in the

Plaintiffs’ favor, but not its legal conclusions. See Smoke Shop, LLC v. United States, 761

F.3d 779, 785 (7th Cir. 2014). Plaintiff Stross has claimed in his Complaint that Tiny

Timbers used a photograph he claims is copyrighted in his name. But it, however, was

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not used in an attempt to distribute the photograph for profit. Rather, Stross admitted it

was used for educational information.

In this case the complaint presents several allegations that show no infringement

was made. According to Sherry Chapo’s affidavit at ¶10 (Doc 18-1), Tiny Timbers

posted the photograph (Doc 18-2) in question on its website in July of 2019 for

educational purposes. Stross admits in his complaint at ¶¶4, 18, 20, 21, 22 and his Exhibit

2 that the photograph was used for educational purposes. These paragraphs admit as true

the following:

1. ¶4 admits the website in question has nothing to do with distributing the

photograph for financial gain, but that Tiny Timbers “is a manufacture and
distributor of fine hardwood products out of locally grown Indiana timber.”
2. ¶18 admits as true that Stross discovered the photograph “shown on the ‘Southern
Bald Cypress’ information page.” Thus, it was clear that Stross knew and
understood the photograph was not used for distribution for financial gain
purposes.
3. ¶¶20, 21, 22 and Exhibit 2 are all based on the educational purpose of the
“‘Southern Bald Cypress’ information page” of the website. The photograph was
used to education the customers of Tiny Timbers about the different types of
wood and the qualities of the wood. It would be incredulous to convert this type
of educational use to distributing the photograph for financial gain.

This type of use is identified in the Title 17, Copyright law as “fair use.” “Fair

use” is governed by §107. In summary “fair use” is a legal principle that allows for

freedom of expression to permit the improper use of copyrighted works in special

circumstances. It is sometime treated as an affirmative defense, meaning the alleged

infringer has the burden of proving fair use. In determining whether “fair use” is

applicable §107 sets forth four factors to be considered. There are:

(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole;

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and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.

These factors are to be weighed. Courts typically weight heavily the first factor,

the purpose and character of the use to the other factors. But the 7th Circuit focuses on the

fourth factor. See Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014),

We think it best to stick with the statutory list, of which the most
important usually is the fourth (market effect). We have asked whether the
contested use is a complement to the protected work (allowed) rather than
a substitute for it (prohibited).

A case that is very similar to this one discussed in detail the “fair use” doctrine in

§107. In Neri v. Monroe, 110 U.S.P.Q.2d (BNA 1506, 1513, 2014 U.S. Dist. LEXIS

24176 (WD Wis. February 26, 2014). Citing Cariou v. Prince, 714 F.3d 694, 705 (2nd

Cir. 2013) the court stated, “The first factor is the ‘heart of the fair use inquiry’ and

requires consideration of how the copied work was used.” This is quoted in Neri at 1513.

The Neri court also quoted Brownmark Films, LLC v. Comedy Partners, 682 F.3d

687, 693 (7th Cir. 2012) (“Central to determining the purpose and character of a work is

whether the new work merely supersedes the original work, or instead adds something

new with a further purpose or of a different character.”). The Supreme Court in Campbell

v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (19740 said virtually the same thing, the

questions is,

whether the new work merely “supersede[s] the objects” of the original
creation, … (“supplanting” the original), or instead adds something new,
with a further purpose or different character, altering the first with new
expression, meaning, or message; it asks, in other words, whether and to
what extent the new work is “transformative.”
(Citations omitted)

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The Supreme Court further held, “the more transformative the new work, the less

will be the significance of other factors, like commercialism, that may weigh against a

finding of fair use.”

Using the analysis of Neri, the original photograph claims to be owned by Stross

was for profit in relating to real estate. But Tiny Timbers use was for informational or

education use. Thus, there was a real transformation.

Factors two and three in §107, while they may be weight against “free use.” The

first and the fourth factors greatly outweigh them.

The fourth factor greatly outweighs a rejection of the “free use” doctrine. The

fourth factor asks the court to determine if there was any effect on the potential market or

value of Stross’ alleged work. Due the informational use and its transformation, there is

no effect one way or the other of the make or value of the photograph. In fact, it is non-

existent. It is inconceivable that people seeing the photograph in its context of explaining

the nature and purpose of wood would affect the photograph’s potential market or value.

While the Supreme Court in Campell, focused on factor one and the

transformational nature of the copy of the copyright work, the Supreme Court in Harper

& Row, Publrs. V. Nation Enters., 471 U.S. 539, 566 (1985) stated the fourth factor is

“the single most important element of fair use.” A quote from Harper, at 566-567, by

Neri at 1515 also emphasized the importance of the fourth factor. The quote was, “Fair

use, when properly applied, is limited to copying by others which does not materially

impair the marketability of the work which is copied.”

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Thus, it is clear, by Stross admitting the photograph was used for education or

informational purpose and not presenting any evidence of a loss to the potential market or

value of the copyrighted photograph, there was no infringement under §501.

b. Other Documents Show No §501 Infringement.

The court must also consider “documents attached to the complaint, documents that are

critical to the complaint and referred to in it, and information that is subject to proper

judicial notice.” See Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir.

2013).

To the extent that an exhibit attached to or referenced by the complaint

contradicts the complaint's allegations, the exhibit takes precedence. See Forrest v.

Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007). (“Taking all facts pleaded in

the complaint as true and construing all inferences in the plaintiffs favor, we review the

complaint and all exhibits attached to the complaint.”) See Massey v. Merrill Lynch Co.,

Inc., 464 F.3d 642, 645 (7th Cir.2006). Where an exhibit and the complaint conflict, the

exhibit typically controls, Id. A court is not bound by the party's characterization of an

exhibit and may independently examine and form its own opinions about the document.

See McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir.2006). “A complaint should only

be dismissed if there is no set of facts, even hypothesized, that could entitle a plaintiff to

relief.” Massey, 464 F.3d at 645.

However, the doctrine of “incorporation-by-reference” does not convert a Rule

12(b)(6) motion into a motion for summary judgment. It is well settled that in deciding a

Rule 12(b)(6) motion, a court may consider “documents attached to a motion to dismiss if

they are referred to in the plaintiff's complaint and are central to his claim.” See Wright v.

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Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.1994). In effect, the incorporation-by-

reference doctrine provides that if a plaintiff mentions a document in his complaint, the

defendant may then submit the document to the court without converting defendant's

12(b)(6) motion to a motion for summary judgment. The doctrine prevents a Plaintiff

from “evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his

complaint a document that prove[s] his claim has no merit.” Tierney v. Vahle, 304 F.3d

734, 738 (7th Cir.2002).

Stross alleged at ¶29, “Tiny Timbers copied, displayed, and distributed the Work

at issue in this case and made derivatives of the Work without Stross' authorization in

violation of 17 U.S.C. § 501.” This is belied by Exhibit 2 in the Complaint and a

document referred to in the Complaint at ¶25.

Exhibit 2 is contrary to the conclusion of Stross that §501 was violated. Exhibit 2

shows a screenshot of the informational page of the tiny Timbers’ website. According to

case law cited above it prevails over the conclusion of Stross that an infringement was

made.

¶25 of the Complaint alleges that Stross notified Tiny Timbers of the alleged

violation. There are two problems for Stross. First, the notification he gave on October

15, 2021 contains several photos. Two of the photos verify that Stross was fully aware of

the fact the photograph that was alleged infringed came from Tiny Timbers informational

section of the website discussing Southern Bald Cypress.

The second problem creates a major and indefensible issue for Stross. In the

Complaint Stross set forth a photograph with © and his watermark of A3S on the bottom

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right corner. The photograph in the body of the notification letter on page 2 appears to be

identical. But it has no ©, nor does it have Stross’ watermark signature of A3S.

As the cases cited above, Phillips, Forrest, and Massey hold, where a document

referred in the Complaint conflicts with a document in the Complaint, the referred

document prevails. Thus, the use of a photograph in the Complaint that has a © and a

watermark of A3S is subservience to the photograph in a reference notification letter that

does not have the © or the A3S watermark. Accordingly, since Stross has not proven the

photograph in the Complaint is legally copyrighted, giving a tangible copy of it, there is

no §501 infringement and Stross has failed to state a claim for relief under §501.

3. No Violation of §1202.

§1202(b) prohibits the removal of copyright management information, which

would include the name of the author, the © symbol, and signature watermarks that are

found on the work copied.

a. Photograph in Complaint Not Prevailing.

In ¶35 of the Complaint Stross alleged that the “work” in ¶11 contains the copyright

management information of © and Stross’s signature. In ¶36 Stross further alleges that

Tiny Timbers removed the © and A3S to enable a copyright infringement.

As stated in the preceding subsection, the photograph in the notification letter

(Doc 18-3) controls over the photograph in the Complaint. It should also be noted that the

photograph in the Complaint has not surfaced in any of the websites contained in the

Exhibits found by Sherry Chapo. All of them attribute the photograph to Dick Clark

Architecture, but none of them have any © for Stross, nor his A3S watermark signature.

As was stated in Sherry Chapos affidavit at Doc 18-1), the photograph used in the Tiny

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Timbers website was found on the mi casa es su casa website. According to Stross, his

Exhibit 2 in the Complaint and the same photograph in his notification letter indicate the

photograph was a screen shot modified to fit a frame by web publishing applications.

This modification could only be substantiated by Stross producing a copyrighted

photograph with his watermark signature and the © mark, which has not been done.

Since the mi casa es su casa photograph used by Tiny Timbers had no copyright

credit showing Stross had a copy right, it was impossible for Tiny Timbers to remove

copyright information that was not present. It is also impossible for a court to rule that

such information was removed. Accordingly, Stross has failed to state a claim for relief

under §1202.

b. §1202 violated by Stross.

Since it was impossible for Tiny Timbers to remove copyright information that was not

on the photograph there is a serious question as to where the photograph in ¶11

originated. The first time the photograph with a watermark signature and a © mark

appears is in the Complaint. There is no evidence that it appeared anywhere else. The

logical conclusion is that it was produced sometime after the October 15, 2021

notification letter and the date of the Complaint, November 9, 2023. But it may have been

produced just for the instant case.

If the photograph in ¶11 was produced after October 15, 2021, Stross may be

guilty of violating §1202(a) by putting false copyright management information on a

photograph to obtain financial gain over Tiny Timbers. Thus, it is not Tiny Timbers

violating §1202, but Stross.

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III. Conclusion.

Tiny Timbers has shown that Stross has failed to state a claim that relief may be granted

for either the allegations that §501 was violated or §1202 was violated. Accordingly, the

court must dismiss the claim for failure to state a claim under Rule 12(b)(6).

Dated February 29, 2024 Respectfully submitted,

s/ Charles E. McFarland
Charles E. McFarland
Ohio Bar # 0031808
Attorney at Law
338 Jackson Rd.
New Castle, Kentucky 40050
mcfarlandc@bellsouth.net
(502) 232-5084

CERTIFICATE OF SERVICE

The undersigned does hereby state that I filed the above Reply with the Clerk of Courts

the Court’s MC/ECF electronic filing system on February 29, 2024 and will be distributed

to the following shortly after its filing to the following through his e-mail address:

Attorney for the Plaintiff – J. Campbell Miller, Campbell.miller@sriplaw.com

s/ Charles E. McFarland

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